Divorce, Is Delaying A Settlement Wise?

6th February 2015

By Lisa Wagner

Have you recently separated or have been separated for a long time but haven’t yet done anything to legally formalise that separation? If you are in this situation then you should really keep reading this article to find out how wise it is to delay resolving your matter once you decide that your marriage or de facto relationship is over.

Increasingly we have been asked to represent spouses faced with a claim for property settlement by their former spouse some time after separation. In one instance the delay was in excess of a decade. Often these matters are in circumstances where the spouse making the claim originally represented to their former spouse that they wished to forego any interest that they may have had in the matrimonial property.

What does the Family Court do in cases like this? Can a party who has separated years ago but never made a financial claim change their mind down the track and claim a share of what the party who was left behind believed belonged entirely to them?

This was the very question that the Family Court was asked to determine in the case of Bevan & Bevan (2013) FLC 93-545.

In that case the parties had largely lived apart for eighteen years. After separation the husband, who was a doctor, returned to the United Kingdom to work. He gave his wife a Power of Attorney and told her that she could keep all the property in Australia for herself and the children saying that his life would be built elsewhere.

The parties divorced in 2010 however within days of the twelve month limitation period expiring the husband filed an Application for settlement of property claiming a share of the Australian assets which he led the wife to believe at separation were hers alone.

The Court considered both arguments. The wife asserting that:

  1. given the husband’s initial representations and his continued conduct consistent with what he had originally said he should be prevented from receiving any property; and

  2. the husband’s significant delay should be taken into account preventing him from now coming to Court and claiming a share of property that he had originally promised would belong to his ex-wife.

The husband, wishing to trigger the power of the Court to make a financial adjustment in his favour, simply relied upon the contributions he had made to the marriage and the fact that he had made an Application to the Court within the twelve month period of the Divorce Order being made which is the prevailing legal requirement.

Ultimately the Family Court held that it would not be just and equitable to interfere with the existing property interests of the wife. The husband, in essence, was held to the promise he had made to his wife at separation of foregoing any financial settlement entitlements.

It should be remembered that the decision in this case, like any other in the Family Court, turns on its particular set of facts.

If you would like to talk about your particular family situation, especially if you have been separated for a long time, then please do not hesitate in calling me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners who are experts in all areas of family law and can help you to take the next step.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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